Intellectual Property Boston College Law School January 24, 2007 Copyright – Rights – Other

Exclusive Rights 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work … (2) to prepare derivative works … (3) to distribute copies … to the public … (4) … to perform the copyrighted work publicly … (5) … to display the copyrighted work publicly … (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

Right to Reproduce Elements of infringement action –(1) Actual copying Independent creation is not infringing Factual issue for the jury –(2) Improper appropriation Perspective is the ordinary observer Did the copier copy “too much”?

Improper Appropriation –Standard: “substantial similarity” –Perspective: intended audience Types of cases –Fragmented literal similarity Literal copying of portions of original –Comprehensive nonliteral similarity Non-literal copying of ideas, structure, plot, characters, etc.

Nichols v. Universal “Upon any work, … a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.”

Abstractions Test Idea Plot Outline Subplots, Characters Specific Scenes Text Not Protected Protected

Nichols v. Universal Idea Plot Outline Subplots, Characters Scenes Text Abie’s Irish RoseThe Cohens and the Kellys No copying No copying of protectible material Not protectible

Shakespeare v. Laurents Idea Plot Outline Subplots, Characters Scenes Text Romeo & JulietWest Side Story ?

Improper Appropriation Substantive issues –Standard is “substantial similarity” –Both quantitative and qualitative –Generally look to “ordinary observer” Sometimes modify if intended for a specialized market Procedural issues –Issue of fact: for the jury –Expert testimony generally not permitted –Reviewed on appeal for clear error

Steinberg v. Columbia

Infringing?

Copyrighting Styles

Sampling

Statutory Limits Statutory limits on reproduction right –Public library exceptions –Broadcast exceptions –Compulsory licensing for musical works –Audio Home Recording Act –Fair Use

Derivative Work Right 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: … (2) to prepare derivative works based upon the original.” 17 U.S.C. §101 –“A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version … or any other form in which a work may be recast, transformed, or adapted.”

Derivative Work Right

Anderson v. Stallone

17 U.S.C. §103 –(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which the material has been used unlawfully.

Why derivative work right? Arguments in support –Author created something of value; reward –Additional incentive for creating initial work –Provide for orderly exploitation of work –Preserve integrity of the work Arguments against –Gives too much control over downstream creativity –Hinders development of follow-on works –Existing incentives sufficient –No need for orderly exploitation

Public Distribution 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following:… (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending...

First Sale Doctrine 17 U.S.C. §109 –“(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” –Exceptions Recorded music rental Software rental

Public Distribution Proposals to limit first sale –Royalties for library lending –Royalties for video rentals –Royalties for CD re-sales –Royalties for textbook re-sales

Public Performance 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following:… (4) … to perform the copyrighted work publicly …” –Sound recordings are excluded No general public performance right But digital public performance right in 106(6)

Public Performance 17 U.S.C. §101 –“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process …” –“To perform or display a work ‘publicly’ means - (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process …”

Public Performance Examples –Live performance Place open to public –Showing a movie in a movie theater –Performing a play on Broadway Substantial number of people outside normal circle –Performing play in a church or private club –Performing music at a private dance club –Transmission Television broadcast Radio broadcast of music Reception of television in a public place (e.g. sports bar)

Public Performance 17 U.S.C. §110 Exclusions –(1) Face-to-face teaching activities –(2) Instructional broadcasting –(3) Religious services –(4) Performances of music with no commercial advantage –(5) Mere reception of broadcast in public –(6) Agricultural fairs –(7) In connection with sale of records or sheet music –(8) Noncommercial broadcasts to deaf and blind –(9) Certain charitable performances

Public Performance Compulsory licenses –Cable retransmissions of broadcast t.v. –Satellite retransmissions of broadcast t.v. –Jukebox performances of musical works –Digital performances of sound recordings

Collective Rights Organizations ASCAP, BMI, etc. –Given authority to license public perf. rights –Provide blanket licenses to users –Enforce licensing requirements –Distribute revenues to copyright owners

Sample Licenses

Public Display 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following:… (5) … to display the copyrighted work publicly …” 17 U.S.C. §109(c) –“Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made … is entitled … to display that copy publicly … to viewers present at the place where the copy is located.”

Moral Rights Berne Convention Article 6bis Berne Convention Implementation Act (1988) Visual Artists Rights Act (1990)

Visual Artists Rights Act 17 U.S.C. §101 –A “work of visual art” is - (1) a painting, drawing, print, or sculpture, existing in a single copy [or] in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author … or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author...

Visual Art

Visual Artists Rights Act 17 U.S.C. §106A: –(a) Subject to section 107 …, the author of a work of visual art - (1) shall have the right - –(A) to claim authorship of that work, and –(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; (2) shall have the right to prevent the use of his or her name as the author of a work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

Visual Artists Rights Act 17 U.S.C. §106A: –(a) Subject to section 107 …, the author of a work of visual art -... (3) … shall have the right –(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation … ; and –(B) to prevent any destruction of a work of recognized stature...

Visual Artists Rights Act Additional details –Right attaches regardless of ownership of copyright or the actual copies –Can be waived, but only in a signed writing –Duration is generally life of the artist –Violation leads to an action for infringement

Administrative Next Assignment –Read into II.F – Fair Use Through Sony v. Universal and Problem